Divide, Conquer Fails As Appeal Tactic

July 24, 2002
Reprinted with permission by the Connecticut Law Tribune, July 15, 2002, by Thomas Scheffey

Accepting reduced judgment froze rights

Justice Christine S. Vertefeuille faced a difficult question on appeal.

In Edward Cohen's battle against cancer, he managed to beat difficult odds. But in subsequent litigation against his cancer doctors, he saw a $2 million jury verdict shrink down to $375,000-with a right to appeal disappearing entirely.

The case at trial was split into separate questions for the jury, first simply establishing that liability existed. After that, the jury was allowed to ascribe damage amounts to three categories of injury. It awarded Cohen $1.4 million for damage from the radiation pellet therapy he needed in Boston after an initial diagnosis was allegedly missed at Yale-New Haven Hospital. The jury also ascribed $600,000 to Cohen's increased risk of dying.

By the conclusion of the trial, only one doctor remained as a defendant. He presented the standard post-trial motions - to overturn the verdict, grant a new trial, or reduce the amount on both awards-the trial judge tossed the risk-of-dying award as insufficiently supported by the evidence.

Finally, on the sole remaining award for Cohen's sciatic nerve damage from radiation, the trial court offered a tough choice. Cohen could accept a reduction of the award to $375,000 or have a completely new trial on the issue of damages.

Tough Choice

Cohen, represented by experienced malpractice lawyer Stephen J. Errante of New Haven's Lynch, Traub, Keefe & Errante, faced a difficult strategic choice. Instead of accepting the $375,000 as the case's final amount, or risking a completely new trial on damages, Cohen chose a third course.

Accepting the reduced amount on the nerve damage award, he attempted to seek a new trial on the rejected issue of increased risk of cancer, and to reinstate the jury's $600,000 for the separate issue of an increased mortality risk.

Cohen's oncologist, Barry Kacinsk, was represented by Jeffrey R. Babbin, of New Haven's Wiggin & Dana, challenged Cohen's very right to relitigate the same kind of damages he accepted at the $375,000 remittitur figure.

A 1977 U. S. Supreme Court doctrine from Donovan v. Penn Shipping holds that a plaintiff cannot accept a lowered remittitur award under protest and go back and appeal the very judgment he's accepted.

The key issue before the state Supreme Court in Cohen v. Yale New Haven Hospital, et al., was whether the damages that Cohen accepted at the $375,000 level were the same type as those that he was seeking by pressing the cancer and mortality risk claims.

On analysis, Vertefeuille found that both the nerve award and the damages sought for cancer and death risks were both "noneconomic, compensatory damages" which would overlap, and thus be "particularly ill-suited for consideration by different juries." The fact that the remittitur judgment was accepted on the noneconomic compensatory damages gave the court no jurisdiction to hear an appeal for further damages.

Separate, Not Different

And the simple fact that the trial judge, using interrogatories, separated the noneconomic, compensatory damages into separate components "is not sufficient to render them separable for purposes of appeal," Vertefeuille wrote.

One of the policy reasons not to allow a litigant to pocket the remittitur gains in a case like this, and then re-litigate the losses, is to save judges from endless litigation and to afford parties finality earlier in the process, the court held.

Babbin, an appellate lawyer at New Haven's Wiggin & Dana, said the decision "puts more strategy in advising a client on how to proceed."

Errante was unable to return a call before press time.

Babbin said the defense felt the plaintiff in effect "engaged in an improper [attempt] to fashion a risk-free maneuver, and the court did not look kindly on that. It was an important statement by the court."